EPA Reaches Informal Resolution of a Fifteen-Year-Old Civil Rights Complaint Against the New Mexico Environment Department

Fifteen years ago, three grassroots environmental groups and two individuals lodged a civil rights complaint against the New Mexico Environment Department (NMED) with the federal Environmental Protection Agency (EPA). In a letter dated last Thursday, January 19, 2017, EPA announced its resolution of the complaint, which challenged the New Mexico Environmental Department’s (NMED) approval of a permit for the Triassic Park Hazardous Waste Dump near Roswell, New Mexico.

The 2002 complaint, which was filed by Citizens for Alternatives to Radioactive Dumping (CARD), the Water Information Network (WIN), and Conservative Use of Resources and the Environment (CURE), alleged that NMED engaged in a statewide pattern of discrimination in its permitting processes and failed to provide meaningful opportunities for effective public participation for community residents, especially for residents who speak languages other than English.

According to Deborah Reade, CARD’s longtime Director of Research and a writer of the 2002 complaint, “In rural, southeastern New Mexico, where much Spanish is still spoken, many folks are poor, and few can afford the luxury of attending public meetings. People who would be directly affected by a hazardous waste dump simply weren’t being involved in the discussion of whether Triassic Park should or should not be built. Sometimes NMED and GMI actually insulted and threatened community members and leaders during the meetings. NMED’s actions seemed to be an attempt to keep Spanish-speaking residents from informing themselves about the Triassic Park waste facility.”

After 2002, the Triassic Park project temporarily faded from public attention. In 2011, GMI began a new round of negotiations with NMED to renew its permit for the Triassic Park dump. This permit process is ongoing today. Deborah Reade, representing CARD, and Noel Marquez, co-signer of the 2002 civil rights complaint and founder of the New Mexico environmental group Communities for Environmental Justice, began to marshal opposition to the Triassic Park permit in Chavez and Lea Counties and throughout New Mexico. Marquez explained, “NMED should understand that the citizens of this southeastern corner of New Mexico believe they have been designated as a sacrifice zone for the radioactive and hazardous waste dumping industries, and that they have to be meaningfully included in the conversations about the health and safety of their communities. That’s NMED’s job, but as soon as any public information efforts started, they claimed they couldn’t afford to translate documents and they treated posting notices on their website as enough to reach people who don’t even have computers.”

In 2015, thirteen years after the 2002 complaint, Earthjustice—a national environmental advocacy group—filed lawsuits on behalf of five grassroots environmental groups throughout the United States. These groups, including CARD, challenged EPA’s “unreasonable delay” its investigations of civil rights complaints. This lawsuit motivated an EPA investigation into the 2002 complaint against NMED.

Last week’s letter announced that EPA had reached an informal resolution agreement with NMED “in order to resolve the complaint and additional concerns identified by the EPA.” The agreement—a copy of which is attached—states that in August 2016, EPA guided NMED to expand public involvement in the Triassic Park permitting process, provide more information to affected communities, furnish necessary information in Spanish, and allow more time for rural communities in Chavez and Lea Counties to understand both the permitting process and the project itself. The EPA also required NMED to meet dozens of specific procedural requirements for both the Triassic Project and NMED’s permitting practices.

Specifically, the agreement requires NMED to designate a Non-Discrimination Coordinator to oversee all application and permit-granting procedures. NMED has agreed to develop and implement a public participation policy significantly expanding both communication with affected community members and opportunities for community members to participate. The agreement also requires NMED to develop and implement plans to ensure access for persons with limited English proficiency and for persons with disabilities. Additionally, NMED is required to train its employees to avoid future discrimination.

Nevertheless, CARD and Communities for Environmental Justice (CEJ) are concerned that the agreement does not go far enough. They worry that the agreement will not protect the interests of communities affected by the Triassic Park project, because the period for public comments on the project has already ended. As the safeguards in the agreement were not in force during the Triassic Park permitting process, they believe that NMED should reopen the comment period again. “At a minimum, we would like to see a successful effort by NMED to publicly inform our communities about the nature of the Triassic Park dump,” said Marquez, “to reach all communities in a 60-mile radius of Triassic Park, in English and in Spanish.” Reade described the need for translation of vital documents and the additional time to read and comment on them.

Yet, NMED appears unwilling to reopen the comment period, despite having spent years facilitating the Triassic Park project by assisting its owners in the permit application process and by issuing multiple versions of the Triassic Park permit. It also remains unclear whether the Triassic Park permit application contains all necessary information relating to human pollution exposure from the dump and from trucking to and from the site.

After considering the agreement, Reade noted, “Until now, New Mexico has not paid enough attention to the effects that polluting facilities can have on communities of color and low-income communities throughout the state. The state Environment Department has also not made it easy for these communities to participate. It took far too long to get to this point, but finally there’s an agreement in place that should lead to more equitable public participation so communities’ voices are heard when permits to pollute are being considered. We’ll be watching to make sure that NMED implements the agreement.”